In Dunford v. American Databank, LLC, the plaintiff alleged that the defendant violated the Fair Credit Reporting Act by including within her criminal background report charges that were more than seven years old. The plaintiff sought to certify two nationwide classes. The court found that, among other impediments to certification, the proposed class representative was inadequate because of her prior criminal convictions and her arrest and felony charge during the pendency of the case.

The court spent the bulk of its certification analysis addressing the issues presented by the plaintiff’s criminal history. In the court’s view, plaintiff’s criminal history posed several problems with respect to her bid to act as a class representative. First, the plaintiff would be subject to harsh cross-examination regarding her crimes, which might have proved detrimental to absent class members. Second, the court found that the plaintiff’s illicit actions called into question her ability to fulfill her fiduciary duties to the class. To that end, the court explained that “[t]he undersigned judge will not leave the rights of absent class members and the negotiating powers of the class in the hands of someone who was arrested the day before the class certification hearing, convicted of vandalism while class certification was pending, and recently ‘entered the wrong apartment . . . while intoxicated’ leading to a guilty plea of aggravated trespass, not to mention all the other convictions.”

The court also questioned the adequacy of the proposed class counsel, noting that counsel was less than candid about the plaintiff’s criminal history and “either tried to slip this bad record by the Court or did a poor job in vetting [the plaintiff.]” In addition, the court explained that the proposed common question did not extend to the nationwide class and that the plaintiff’s claims were not typical of putative class members. Given these issues, the court denied certification and refused to consider a narrower class, noting that “Rule 23 motions are not a negotiation in which counsel ask for the moon while being willing to accept whatever is reasonable. Counsel should be reasonable from the start.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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